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170 E.Calliari et al.
motifs of theUSdelegation atCOP21was that any reference to legal remedies in
the Paris Agreement would have encountered the opposition of the Congress and
hadtheeffect“tokill thedeal”.TheUSratificationconstraint (Putnam1988)forced
AOSIS to put aside their responsibility claims and go for a compromise solution.
Talksbetween theUSandsmall island states, labelleda“meetingof theminds”by
SecretaryKerry (Friedman2015),were held at the onset of the secondnegotiation
week,with Saint Luciaminister Fletcher describing their objective as “ensur[ing]
that everybodywas comfortablewith the agreement” (CarbonBrief 2015).Yet, the
compromisesolution(paragraph52of theaccompanyingdecisionto theAgreement
excluding basis for any liability or compensation claims) did notmake everybody
comfortable. The Philippines expressed deep concern and Bolivia stated that “no
clause candenypeople andcountries’ rights to ask for compensation”and that “all
thenecessary institutionalmeanswillbeusedso that [climate] justicecanbemade”
(Bolivia2015).
Asmade evident by this discussion, a liberalist viewofL&Dnegotiations does
notreallyhelptoexplain thestructuralist-paradox. Infact, it reinforces it.This is the
result of considering, as in realism, negotiation outcomes a function of the (static)
characteristics—beingParties’ features or capabilities—of aparticular negotiation.
In otherwords, for liberals andneorealists it ismaterial power (military hardware,
strategic resources, andmoney) that ultimatelymatters (Hurd 2008). On the con-
trary,constructivistsargue thatbothmaterialanddiscursivepowerarenecessaryfor
understandingworldpolitics(Hopf1998).Wethereforeturnourattentiontothecon-
structivistapproachandtherolethatethicalandlegaldiscourseshavehadinshaping
L&Dnegotiations.
6.4.3 Constructivism
Along theconstructivism line,L&Dnegotiationswouldhavebeen shapednotonly
bymaterial poweror state interest but alsobyacompetitionbetween states around
different understandings and framings (i.e. discourses) ofL&D.Developing coun-
tries have largely framedL&D in ethical and legal terms andmade a case for this
conceptualisation since the beginning of climate talks. They have pointed to the
unfairnessofclimatechange (affectingfirst those least responsible for theproblem)
and to the threats for survival it poses for themost exposed societies.Byanalysing
developingcountries’submissionstotheSBIandADP(2011–2015)andHighLevel
Segment statements fromCOP16 toCOP21 (seeCalliari (2016a) for thematerial
employed), it is possible tofind references to theconceptsof fairness, international
solidarity; equity and intergenerational equity. The legal counterpart of these ethi-
cal arguments is the concept of state responsibility–compensation (seeChap. 7 on
legal issues: Simlinger andMayer 2018),which seeks reparation forwrongful acts
attributable to states. In termsof citation frequency, this is themost-citedprinciple
in the (wide) sample of submissionswe analysed, and it is often accompanied by
thePolluterPaysPrinciple;Commonbutdifferentiatedresponsibilityandrespective
Loss and Damage from Climate Change
Concepts, Methods and Policy Options
- Title
- Loss and Damage from Climate Change
- Subtitle
- Concepts, Methods and Policy Options
- Authors
- Reinhard Mechler
- Laurens M. Bouwer
- Thomas Schinko
- Swenja Surminski
- JoAnne Linnerooth-Bayer
- Publisher
- Springer Open
- Date
- 2019
- Language
- English
- License
- CC BY 4.0
- ISBN
- 978-3-319-72026-5
- Size
- 16.0 x 24.0 cm
- Pages
- 580
- Keywords
- Environment, Climate change, Environmental law, Environmental policy, Risk management
- Categories
- International
- Naturwissenschaften Umwelt und Klima